I was wondering if you have any thoughts on Justice Black and his "incorporation doctrine" and his out-of-whole-cloth invention of the Constitutionally mandated "Wall of Separation bettwen Church and State" in the Everson case of 1947. That phrase has been a shibboleth of the Conservative movement in general and the Religious Right in particular and is perhaps the credo the secular groups(ACLU and the Left in general). It is, I think in any fair assessment, right up there with the "right to privacy" among the bete noire's of conservative jurisprudence.

In fact, I'd wager that if you took a vote among groups like Dobson's, the FRC, CWA, the Federalist Society, ACU, etc... and told them that the SC would overturn one of two lines of cases, and they got to pick, and you gave them the choice of either the Griswold-Roe-Casey-Stenberg line or the Everson-Engel-Lemon-Lee-Newdow-McCreary line, it would be an extremely close vote. I'd say the latter line of cases would come out with a slight victory. What do you think?

As you know, Black(a former klansman who many scholars have said used the phrase for anti-Catholic purposes that dated back to his klan days(I have no idea if this is true or not))was well known for being an ardent "follow the text" Justice and had well known feuds with Justices like Cardozo, Frankfurter, and Harlan over things like the "incorporation doctrine" and the meaning of the due process clause, among others.

As you most likely also know, the phrase "Wall of Separation" has no Constitutional foundation whatsoever and instead doesn't even appear at all until a letter written by Thomas Jefferson in 1805(20 yrs after the Constitution and 15 yrs after the Bill of Rights). Jefferson as you know had nothing to do with the Constitution. He wasn't present at the Convention, he didn't help draft it, he didn't sign it, he wasn't present when Virginia ratified it, etc... He was wholly removed from the process by virtue of being in France.

Nevertheless, Black took it upon himself to utilize this hitherto little-known-if-at-all phrase from a letter that at the time of the Everson case in 1947 was more than 130 yrs old as a means to revolutionize the way religion is treated in this country and the relationship it has to the Constitution.Everson was effectively the Operation Overlord/D Day/Shock and Awe/Inchon Landing(whatever other military analogy you want to use)in the war against religion that has been launched by the Left/Secularists in this country, and the ACLU in particular.

The cases that flowed from it have been very controversial and bitterly opposed and have resulted in recent decisions that found, among other things, that the Pledge of Allegiance and the Ten Commandments are unconstiutional. It continues to be used by the ACLU in suits to effectively remove Christmas celebrations from the public square, and Michael Newdow is even using it to have our currency declared unconstitutional.

Anyway, I was just wondering if you had any thoughts on how a person as faithful to the text of the Constitution as Black could use such an extraconstitutional phrase to completely distort and pervert the 1st amendment beyond any fair construction, to use a phrase from Chief Justice Marshall in McCulloch v Maryland.Hopefully Roberts and Alito won't follow in his footsteps and use some other line in some 130+ yr old letter to similarly make a persoanl amendment to the Constitution.

Another interesting case is that of Potter Stewart. Like Black, he too claimed to be faithful to the text and indeed dissented in Griswold because he could find no "general right to privacy" in the Constitution. Of course that didn't stop him from joining the Roe majority and finding some other right that isn't in the Constitution either. It also didn't stop him in 1972 from finding that something that IS in the Constitution(capital punishment)really ISN'T in the Constitution(or at least if it was in 1791 it somehow magically vanished from it in the interim)in Furman v Georgia, and then changing his mind 4 years later in Gregg v Georgia and saying, "oops, I did it again", and finding that capital punishment had somehow reappeared after a brief absence. Perhaps it was on vacation or some religious mission. Maybe Bill Douglas has been holding it hostage at his cabin in Goose Prairie before Stewart rescued it.

Perhaps Stewart's most enduring contribution and legacy, though, is his well thought out and respectful of judicial restraint theory of interpretation. While Scalia calls his textualism, Bork uses Orginal Intent, Roberts says that he doesn't even have one, Stewart called his "I know it when I see it". I don't know if any law schools teach "I Know it when I see it" or if any articles or conferences or symposiums have been held to discuss it. I know originalists have the Federalist Society. I don't know what those who believe in "I know it when I see it" have.

Perhaps the WH should be more concerned with Judge Alito's eyesight than his performance in the hearings or his memos on Thornburgh or the fleeing felon case. Maybe they should pay for LASIK surgery to make sure that he can see the Constitution clearly enough, he does wear glasses you know. Of course, LASIK might not be the best option. With bad eyesight, it's more likely he won't see the same right in the Constitution that O'Connor did for the past 24 years. I also don't think they'd want his newfound 20/20 vision to allow him to see a right of terrorists to have habeus proceedings or geneva convention rights or access to the court system.